Security and Duty of Protection

97 members of the Gldani Congregation of Jehovah's Witnesses and 4 Others v Georgia, 3 May 2007 [ECtHR]

Case no 71156/01

129. The Court notes that the 101 applicants were attending a meeting of their congregation when it was attacked. However, the identification of five of their number, listed under nos. 92-97 in the appendix to the present judgment, has proved problematic. Accordingly, the Court concludes at the outset that there has not been a violation of Article 9 of the Convention in respect of those persons.

130. As to the complaints of the 96 other applicants, the Court reiterates that the freedom of religion protected by Article 9 is one of the foundations of a “democratic society” within the meaning of the Convention. It is one of the most vital elements that go to make up the identity of believers and their conception of life. Religious freedom is primarily a matter of individual conscience, but it also “implies”, inter alia, freedom to “manifest [one's] religion” (see Kokkinakis v. Greece, judgment of 25 May 1995, Series A no. 260, § 31). Participation in the life of a religious community is a manifestation of one's religion, protected by Article 9 of the Convention (see Hassan and Chaush v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000‑XI).

131. On several occasions, the Court has held that in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial (see Hassan and Chaush, cited above, § 78; Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV, § 47; and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123, ECHR 2001‑XII), which is incompatible with any power on the State's part to assess the legitimacy of religious beliefs (see, mutatis mutandis, Cha'are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII).

132. The Court wishes to emphasise that, in the name of freedom of religion, it is not authorised to apply improper pressure on others from a wish to promote one's religious convictions (see Larissis and Others v. Greece, judgment of 24 February 1998, Reports 1998‑I, §§ 54 and 59). However, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999‑IX). This State role is conducive to public order, religious harmony and tolerance in a democratic society (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 91, ECHR 2003‑II) and can hardly be conceived as being likely to diminish the role of a faith or a Church with which the population of a specific country has historically and culturally been associated.

133. In the instant case, on account of their religious beliefs, which were considered unacceptable, the 96 applicants were attacked, humiliated and severely beaten during their congregation's meeting on 17 October 1999. Their religious literature was confiscated and burnt, and the applicants themselves were forced to look at the fire. One of the applicants, Mr A. Khitarishvili, had his head shaved to the sound of prayers, by way of religious punishment. Having been treated in this way, the applicants were subsequently confronted with total indifference and a failure to act on the part of the authorities (see paragraphs 119, 123 and 124 above), who, on account of the applicants' adherence to a religious community perceived as a threat to Christian orthodoxy, took no action in respect of their complaints. Deprived of any remedy, the applicants could not enforce their rights to freedom of religion before the domestic courts. As the attack against the applicants on 17 October 1999 constituted the first act of large‑scale aggression against the Jehovah's Witnesses, the authorities' negligence opened the doors to a generalisation of religious violence throughout Georgia by the same group of attackers (see paragraphs 43, 61, 65 and 68 above). The applicants were thus led to fear that they would be subjected to renewed violence on each fresh manifestation of their faith.

134. Having regard to those circumstances, the Court considers that, through their inactivity, the relevant authorities failed in their duty to take the necessary measures to ensure that the group of Orthodox extremists led by Father Basil tolerated the existence of the applicants' religious community and enabled them to exercise freely their rights to freedom of religion.

135. There has accordingly been a violation of Article 9 of the Convention in respect of all 96 applicants.

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IV. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLES 3 AND 9 OF THE CONVENTION

138. According to the applicants, the acts of religiously-motivated violence committed against them had been tolerated by the authorities because they had been committed against a religious minority in the name of the Orthodox faith. The authorities had simply refused to apply the law in their case on account of their faith ...

139. The Court reiterates that the difference in treatment described in Article 14 of the Convention is discriminatory if it “lacks an objective and reasonable justification”, that is, if it does not pursue “a legitimate aim” or if there is “not a reasonable relationship of proportionality between the means employed and the aim pursued”. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000‑X, and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV).

140. Having examined all the evidence in its possession, the Court observes that, in the instant case, the refusal by the police to intervene promptly at the scene of the incident in order to protect the applicants, and the children of some of their number, from acts of religiously-motivated violence, and the subsequent indifference shown towards the applicants by the relevant authorities, was to a large extent the corollary of the applicants' religious convictions. The Government have not adduced any counter-arguments. In the Court's opinion, the comments and attitude of the State employees who were alerted about the attack or subsequently instructed to conduct the relevant investigation cannot be considered compatible with the principle of equality of every person before the law (see paragraphs 28 and 44 above). No justification for this discriminatory treatment in respect of the applicants has been put forward by the Government.

141. The Court considers that the negligent attitude towards extremely serious unlawful acts, shown by the police and the investigation authorities by the police on account of the applicants' faith, enabled Father Basil to continue to advocate hatred through the media and to pursue acts of religiously-motivated violence, accompanied by his supporters, while alleging that the latter enjoyed the unofficial support of the authorities (see paragraphs 36, 54, 55, 66-68, 70 and 85 above). This would suggest to civil society a reasonable doubt as to the criminals' complicity with the State representatives (see paragraph 76 above).

142. The Court therefore concludes that the applicants concerned (see paragraphs 125 and 135 above) were victims of a violation of Article 14 in conjunction with Articles 3 and 9 of the Convention.

V. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

143. According to the applicants, the destruction of their religious literature during the attack on 17 October 1999 without any punishment being imposed on the perpetrators of this crime entailed a violation of their rights guaranteed by Article 10 of the Convention. They considered that the fact of having been attacked during a peaceful meeting without the authorities subsequently taking the necessary measures for their protection amounted to a violation Article 11 of the Convention.

144. The Court considers that these complaints are identical to hose which the applicants submitted under Articles 3 and 9 of the Convention. Having regard to the finding of a violation of those provisions, the Court does not consider it necessary to examine the application also under Articles 10 and 11 of the Convention.